726
Steps to Avoid Taint
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Prosecution of a witness using evidence independent of his or her
immunized testimony will require the government to meet its burden under
Kastigar, supra, of proving that the evidence it intends to
use is
not tainted by the witness's immunized testimony. In order to ensure that
the
government will be able to meet this burden, prosecutors should take the
following precautions in the case of a witness who may possibly be
prosecuted for
an offense about which the witness may be questioned during his/her
compelled
testimony:
- Before the witness testifies, prepare for the file a signed
and
dated memorandum summarizing the existing evidence against the witness and
the
date(s) and source(s) of such evidence;
- Ensure that the witness's immunized testimony is recorded
verbatim
and thereafter maintained in a secure location to which access is
documented; and
- Maintain a record of the date(s) and source(s) of any evidence
relating to the witness obtained after the witness has testified pursuant to
the
immunity order.
[cited in Criminal Resource Manual 720; USAM 9-23.130] | |